Citation Nr: 0506824
Decision Date: 03/10/05 Archive Date: 03/21/05
DOCKET NO. 02-10 373 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Winston-
Salem, North Carolina
THE ISSUE
Entitlement to a rating in excess of 30 percent for post-
traumatic stress disorder (PTSD).
REPRESENTATION
Appellant represented by: North Carolina Division of
Veterans Affairs
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
C. Hancock, Counsel
INTRODUCTION
The appellant is a veteran who served on active duty from
August 1970 to February 1972. This matter is before the
Board of Veterans' Appeals (Board) on appeal from an April
2003 rating decision by the Department of Veterans Affairs
(VA) Regional Office in Winston-Salem, North Carolina which
continued the 30 percent rating for post-traumatic stress
disorder (PTSD) (assigned by the RO in March 2002). In
November 2004, the veteran provided testimony before the
undersigned at a Travel Board hearing. At the hearing he
withdrew his appeal as claims seeking service connection for
diabetes, memory loss, testicular cancer, hearing loss, and a
skin disorder.
The appeal is REMANDED to the RO via the Appeals Management
Center (AMC), in Washington, DC. VA will notify you if
further action is required on your part.
REMAND
On November 9, 2000, the Veterans Claims Assistance Act of
2000 (VCAA) became law. See 38 U.S.C.A. §§ 5100, 5102, 5103,
5103A, 5107. Regulations implementing the VCAA are at
38 C.F.R §§ 3.102, 3.156(a), 3.159 and 3.326(a). The VCAA
and implementing regulations apply in the instant case. The
veteran has been provided adequate VCAA notice. See letter
of August 2001. He has been advised of pertinent VCAA
regulations. See September 2003 statement of the case (SOC).
VA outpatient treatment records on file, dated most recently
in March 2004, show that the veteran is taking various
medications for his service-connected post-traumatic stress
disorder (PTSD. These records suggest continuing treatment,
records of which are not available. Furthermore, at the
hearing before the undersigned in November 2004, the veteran
testified that he was being seen by a psychologist at the
"Vet Center" once every three months. Records of such
treatment have not been associated with his claims file.
These records presumably would contribute to a more complete
picture of the veteran's psychiatric disability.
At the November 2004 hearing the veteran asserted that his
service-connected PTSD was becoming worse, and was preventing
him from getting a job. He indicated that he was recently
denied employment with Sara Lee (r) because it was determined
that he had social impairment problems. A February 2003 pre-
employment report regarding this attempt at employment shows
that the veteran suffered from numerous disorders, including
PTSD. He was last examined for his PTSD by VA in February
2003, and a more contemporaneous examination is indicated.
At the November 2004 Travel Board hearing, the undersigned
granted the veteran's request that the case be held in
abeyance 90 days for submission of additional evidence (the
report of a private examination report). The 90 day period
has passed, and no additional evidence has been received (nor
has the veteran sought an extension of the abeyance). As the
case is being remanded anyway, he will have further
opportunity to submit this private medical evidence.
VA regulations provide that individuals for whom medical
examinations have been authorized and scheduled are required
to report for such examination. 38 C.F.R. § 3.326(a). VA
regulations also address the consequences of a failure to
report for a scheduled VA medical examination, and provide
that when entitlement or continued entitlement to a benefit
cannot be established or confirmed without a current VA
examination or reexamination, and a claimant, without good
cause, fails to report for such examination in a claim for an
increased rating, the claim shall be denied. 38 C.F.R.
§ 3.655.
Accordingly, the case is REMANDED to the RO for the
following:
1. The RO should ask the veteran to identify
all sources of treatment he received for PTSD
since March 2004, specifically including the
Vet Center where he is seen by a psychologist
every three months, and the physician who
prescribes his psychiatric medications. The
RO should obtain copies of complete clinical
records from all treatment sources
identified. Regardless of his response, the
RO should obtain for the record reports of
all treatment afforded the veteran at the
Winston-Salem VA outpatient clinic since
March 2004. If any identified records are
not available, or lost or destroyed, it
should be so annotated for the record.
2. The veteran should be advised that he
has further opportunity (while the
development above is pending) to submit
the private examination report for which
he sought the period of abeyance at the
November 2004 Travel Board hearing.
3. The RO should arrange for the veteran
to be examined by a psychiatrist to
ascertain the current severity of his
PTSD. The veteran's claim folder must be
reviewed by the examiner in conjunction
with the examination. All findings must
be reported in detail. The examiner
should review the criteria for ratings in
excess of 30 percent, and should note the
presence or absence of each symptom in
those criteria (and, if present, the
frequency and severity of each). The
examiner should opine regarding the
effect of the PTSD on the veteran's
employability, and should explain the
rationale for all opinions given.
4. The RO should then re-adjudicate the
claim. If it remains denied, the RO
should issue an appropriate supplemental
SOC (SSOC), and give the veteran and his
representative the opportunity to
respond. The case should then be
returned to the Board, if in order, for
further review.
The purpose of this remand is to assist the veteran in
development of his claim. He has the right to submit
additional evidence and argument on the matter the Board has
remanded to the RO. Kutscherousky v. West, 12 Vet. App. 369
(1999). This claim must be afforded expeditious treatment by
the RO. The law requires that all claims that are remanded
by the Board for additional development or other appropriate
action must be handled in an expeditious manner.
_________________________________________________
GEORGE R. SENYK
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal.
38 C.F.R. § 20.1100(b) (2004).